Somehow I doubt they’ll ask St. Thomas…

This has to be one of the weirdest stories of the day. 

DC v. Heller

Again, I write this as a person with no formal legal training, so you should take my opinions as one who could certainly be rebutted with things that I am simply not aware of.  The interesting thing to me about Heller is that it seems to be a decision on principle which is entirely consistent with Boumediene, but the decisions share only one voter in common.  I suspect that what we call the more conservative minded legal analysts will object  because Heller, is interpeeting what the words of the second amendment explicitly state, whereas in Boumediene there is more work in inferring an interpretation based on the Constitution and legal precedent.

However, just because the meaning of the second amendment seems clear to conservative scholars does not mean that it is clear. Obviously, reasonable people disagree about what it means — I happen to think the conservative justices are likely correct and obviously so does the majority of the Court– and since reasonable people disagree about what it means, the Court is left with the choice of (a) doing some work in trying to gather a majority opinion about what it means using sound judgment, drawing on relevant case material, and considering the practical applications of their decision once it is made or (b) deferring to democratic legislative bodies.

It is no secret that I am of the opinion that the second one is almost always a worse option than the first.  The Court’s institutional design makes it a unique body to work out such problems reasonably, and to then explain to us the reasons that justify the actual decision. The fact that there are 9 of them, they have a majority vote, and they are representative over a long period of time of the same professional class ensures that while some decisions may not sit well, none of them will be barbarous. Finally, I think there are very substantial reasons to think that the legislative branch is not democratic at all in the ways that dissenters glorify it as being when they defer to majority infringement on the law. More than anything, the law should be just, and I think experts in the law serving in what amounts to deliberative panels on managing the tradeoffs between coherence, fairness, constitutionality, practical enforcement, etc. are far more likely to understand these problems than the public or their representatives. The House Committee hearing on Guantanamo Bay and Interrogation Rules today evidences this in spades, as it is a very disheartening thing, even for a person with a fairly Downsian view of Congressman, to see a collection of representatives of the people who cannot collectively be preapred enough or precise enough to pin down people who, in all likelihood, uncontroversially ordered human rights abuses.

In short, in both Heller and Boumediene, the Majority of the Court rolled up their sleeves, did seem serious legal analysis about why it was essential for the fundamental legal guarantees of our government and the minority of the Court in both cases through a fit about the Court’s counter-majoritarian behavior.  When I think of guns, I think of violence in cities, and I think of the creepy people I met in Pennsylvania who have bought into the gun industry’s selling of being into guns as a lifestyle, and I cringe.  I also know many people who have a military background, who hunt, and who work in law enforcement that use guns responsibly. I am aware that htere are places in America that do not look like any place I have ever lived where the nearest police station is not near. I’m not sure if it is actually the legal case that the DC ban “goes too far” in violating the Second Amendment or not. I am also not sure if the Court’s reading of the second amendment is the best possible reading or not. However, it seems like a reasonable intepretation of both the amendment and of the ban. Further, I see it no different to say “it is wrong to say ‘better safe than sorry’ about people locked up in Guantanamo Bay for whom there is little to no evidence” and “it is wrong to say ‘better safe than sorry’ that because some people use guns for violent crime we should take them all away.”   Recognizing that the Supreme Court would in fact not be a better insitution if all decisions were just made by me, I can easily live with Heller. Like with Boumediene, it seems to be well-reasoned and it errs towards protecting the rights of citizens fromt he state. While both decisions will result in a lot of apocolyptic pronouncements from those who disagree with the opinion, I for one think we ought to be fairly pleased with both as pragmatic decisions that try to maximize the right kinds of priorities for us as free and equal citizens,